Help M & S storecard

[seriously fed up]

First of all, what is it that relies on the "agreement" that they have sent you? Is it still the Chargecard or did they transfer you to &more? If the latter then they are probably doubly stuffed, as that transfer is very dodgy - &more can be used other than in M&S, different t&cs etc - so if they didnt get a new agreement with a sig (preferably yours ) you can get them on that as well.

But in any event, from what you say, M&S are just at it - this is past desperate. To send someone else's agreement as part of your SAR request probably breaches the DPA not only in respect of you, but the poor schmuck whose agreement they have sent you as well.

Basically, unless they have the original agreement they are stuffed. They seem to be arguing here something like "well we dont actually have your agreement but we have this agreement with someone else and yours looks like that". How's that going to look in court?

Sadly that wont put them off. What they have said in their letter re s77 and s78 has some truth in it. They dont have to produce anything other than a true copy - it doesnt have to be an original or copy of an original. However, faced with an SAR they do have to produce a copy of YOUR agreement - in fact they should produce all the records (letters, AND statements - the full boonah) that they have on you. I notice that they dont mention this in their letter. Basically they seem to be trying to ignore the SAR request and how it has turned out for them; argue that they have met their obligation under s77/78 and that thus in terms of the CCA there is no dispute between you and them so we just carry on as usual, even if the SAR shows no legal basis for the debt and thus for it to be pursued.

However, on your side, its quite clear that if the case got to to Court, its very unlikely they would be able to produce any agreement between you and them and without that they dont have a hope. They tried this with me - court papers were issued, but within six weeks they had brought the case to an end on my terms.

Among the things I have learned - painfully - are that these people are never wrong, at least in their own minds. Also that they will never agree with you, unless they hear you say "I surrender - how much do I owe you?"

I have to admit to little experience of M&S's collection activities because in my case things moved pretty quickly - I cancelled the direct debit and CCAd them, and they took me to court. But, if the papers you have had from them are really the best that they can do, the worst that is likely to happen imo is a pile of threatening letters and silly phone calls. Not pleasant by any means, but better than the alternative.

Were I you, I would probably go with letter 20 at The Consumer Forums - Debt collectors adapted to your own circumstances, or perhaps letter 9, again adapted to your circumstances. This will be a good resource for you during the weeks to come. Just dont be too downcast when they dont listen to you. But keep in mind no agreement = no enforceable debt. On the basis of what you have said here, I dont really see that they can do much, if anything to enforce (though that's not to say that they wont make threats - they almost certainly will)

Good luck and keep your chin up.

Edited October 6, 2009 by seriously fed up

[seriously fed up]

This really does make me feel really angry , and I know how you feel as my own wife has MS. What they say to me - the threats and so on - is my problem. But what bothers me is what it does to her, and there is only so much you can do to protect them.

But hey, keep in mind that if they cant produce the executed agreement they ARE stuffed. This is not even a matter within the discretion of a court (eg a judge always on the bank's side) - no agreement=no enforcement because of s127(3). Just keep that in mind. They will try to get the money out of you, but ultimately its bluff, unless they can come up with the document.

You can use the "dont phone me" letter. Will it work? Well no guarantee about that. But if you log the calls and there are enough of them you could bring a complaint about them certainly to OFTEL and perhaps financial agencies.

Or you might think also of something like "call select" so that when they do call, their call can be rejected before it gets through to you. That will get rid of most of the calls (always the worst bit imo), unless they are sneaky enough to use different numbers, but then you just add them to the "black list".

You will have to read their letters and where appropriate reply to them. You can get lots of advice on here as and when you need to do that, but remember your answer is always no.

[seriously fed up]

Assuming that the situation is still the same as sketched out in your posting on 6th October, then there are things that you can do

 

1. you will, I am afraid have to go through a similar loop with this bunch, in much the same way as the last lot, BUT with some differences
   
2. you should advise them that this account is in dispute with M&S. The OFT guidelines on debt collection are quite clear that if an account is in dispute - and if getting a document with someone else's name on it isnt a dispute, I am not sure what would count as a dispute? - then collection activity should cease. The McGittrick case has muddied these waters in that we can point to the OFT, they can point to McGittrick. But, what you need to bear in mind is that they want their money and its difficult to find anything that you can successfully put between them and at least trying to do that (even if not successfully). This isnt about right or wrong its about money!
   
3. following on from that, you should warn them that if they dont cease their collection activity you will be left with no choice (sorrow not anger!) but to report them to the OFT for breach of their guidelines, and the Financial Service Authority (right useless shower,but they might do something about this kind of behaviour if enough of us complain
   
4. last thing for the DCA is that when you write to them advise them that you will only deal with this matter in writing and most certainly not by telephone. Whether that will work or not I wouldnt like to guarantee, but it can work sometimes. You might also think about getting Caller ID. OR, you might try phoning Customer Services - quite a different bunch from Collections - and tell them that your current phone number is being scrapped and that you are going mobile. You might even think about a cheap pay as you go and give them that number - take it out the drawer once a month to see who has phoned you. Might not work - if they dont get an answer from the new number they might have retained the old one. You need to be very clear about getting them to delete it if at all possible.
   
5. you might thinkg about sending M&S a SAR request to see what they have on you.
   

But I am afraid old man that you are going to have a difficult few days, unless - and this is my last bit of advice - you simply refuse to play the game (what is your date of birth? What's yours? - that sort of thing). Generally dont let them take the initative.

Good luck - we are behind you

[seriously fed up]

Well in terms of case decisions they do have McGittrick (spelling might be wrong - its RBS) where the court held that even if an OC doesnt have an agreement which is enforceable in law that neednt deter them from collection activity. I'm not sure if a consideration like that ever did deter them, but at least they can quote a legal judgement at us. On the other hand we can quote OFT guidelines which say there should be no collection activity while an account is in dispute. Indeed I think I have read somewhere here that the OFT is unhappy with that judgement (which I think I have read somewhere is being appealed - though that clearly will take time).

So perhaps its McGittrick that's doing it?

[seriously fed up]

Some people dont let the grass grow, do they? Perhaps a record of sorts?

I dont expect you will see it that way.

First main point is whether "So they are saying that the reconstituted document is legally enforceable." is correct. In my view its not - though they would like you to think that. Even in the judgement, in paragraph 231, Waksman says (the important part is in bold and underlined.

"Mrs Thompson went on to say that she had an alternative case which was to the effect that assuming Barclays had failed to produce a s78 copy, the Court had power to order them to do so by way of an injunction. And if they subsequently produce a copy of the signed application form, the issue of an IEA can be looked at then. And if they do not, then the Court should at least make a declaration at common-law, not under si42, that the agreement is permanently unenforceable and not merely unenforceable for the duration of a s78 breach as s78 (6) provides. I do not think that such an alternative argument assists Mrs Thompson. First I have to deal with the principal claim being made now, as to an IEA which is the focus of the applications. Second, the question as to the appropriateness of such an injunction is an open one: paragraph 16 of the judgment of HHJ Brown QC in Rankine (supra) suggests that it may be but that question did not arise directly for that decision there. Third, it ignores the fact that if a proper case of IEA is mounted, disclosure will take place and of course at that point, if not earlier when the bank makes its defence, it is going to have to disclose the documents relevant to that agreement, whether it had to disclose them at the earlier s78 stage or not. Finally, I do not see that a permanent declaration of the kind mentioned by Mrs Thompson would be appropriate when s78 (6) expressly says that the agreement will be enforceable for so long as the breach persists. If it does, the agreement remains unenforceable. If at some later stage it is cured it is difficult to see why the creditor should not then be entitled to enforce."

In other words, while the reconstitution may let them off the hook for s78 (which has been downgraded to the provision of information - or at least their version of this) the rules of evidence havent been totally abolished (or not yet).

The application form that they sent you was in your name, but not your handwriting. Was this sent to you before the 23rd December (ie before the Manchester judgement?) Does this not sound like forgery? You could do worse than have a look at Dizzy Blond's posts on the "Claim Stayed" thread that I know you are posting on. And remember that an SAR is under the provisions of the Data Protection Act and not the CCA, so this judgement has no effect on that. I dont know much about the Data Protection Act (and only a little more about the CCA) so might be wise to check about.

But, like I say, this judgement applies to s78. Even Waksman seems to be saying that in the event of enforcement by the creditor that the rules of evidence will apply. But that's not what they will want people to think.

[seriously fed up]

I would put all that in a very safe place were I you, since it seems to me to point quite clearly to the veracity of anything that M&S send or "confirm" as genuine.